Saturday, November 24, 2012

Both Apple and Samsung keep exercising their rights under the Northern District of California's permissive rules governing the timing of infringement contentions. After Samsung added the iPhone 5 and Apple brought claims against the Galaxy Note 10.1 and Galaxy S III, as well as the Galaxy Nexus with the Jelly Bean (Android 4.1) update, Samsung filed infringement contentions against the iPad 4 and iPad mini as well as the latest iPod touch. At the time I already said that in terms of the number of products that a party can add to the lawsuit at an advanced stage, there is actually even more of an opportunity for Apple, given that Samsung has a far wider product range.

"the Samsung Galaxy S III running the new Android Jelly Bean operating system" (the S III was previously added as I mentioned above, and Jelly Bean was already at issue in Apple's previous motion to amend, but Apple says that the new Android version "did not
arrive on many devices – including those examined by Apple's counsel – until earlier this month");

the Samsung Galaxy Note II (first released on October 24, rolling out to additional carriers earlier this month); by the way, I just ordered one after having used the original Note for about a year;

the Samsung Galaxy Tab 8.9 Wifi, which also isn't new per se, but the original infringement contentions were based on Honeycomb (Android 3.0) and on Thursday it received its update to Ice Cream Sandwich (Android 4.0), which is why Apple wanted to update its charts as well;

the Samsung Galaxy Tab 2 10.1, "which was released with the Ice Cream Sandwich operating system with various carriers beginning November 9, 2012, and most recently on November 21, 2012";

the Samsung Rugby Pro (released on October 21); and

"the Samsung Galaxy S III Mini, which Samsung has yet to officially release in the United
States, but which Apple discovered earlier this week is now offered for sale in the United States." (the UK release was on November 8)

Apple's motion highlights that all of these products (or product upgrades) were released after the fifth-generation iPod touch Samsung would like to include in this lawsuit, a fact that should make it difficult for the court to allow Samsung the addition of the fifth-generation iPod touch (apparently already released in early October) while denying Apple's latest proposed additions as untimely.

Since the court did not want Apple to bring sweeping infringement claims against the Android operating software without specifying some infringing Samsung devices, Apple's motion clarifies that "Apple does not seek to accuse the Jelly Bean or the Ice Cream Sandwich
platforms operating on any Samsung device". But it's a fact that certain Samsung products have been updated with newer Android versions, and Samsung's own website, cited by Apple's motion, says that the company "is in close communication with both Google and [its] carrier partners to upgrade devices to Android 4.1 Jelly Bean as quickly and as smoothly as possible". Also, Samsung's TouchWiz customizations are adapted for new Android versions.

As interesting as all of these additions are from today's vantage point, the case is scheduled to go to trial in March 2014, and none of these newly-included products or operating system versions will play a major commercial role at that point. But as I explained on other occasions, these additions provide a broader revenue base against which to seek damages, and while the scope of a future injunction would usually include products with an infringement pattern that is "no more than colorably different" than the specifically-named exemplary infringing products, it certainly would help Apple to start any future analysis of contempt of an injunction with the most recent version of the operating software that could still be included in the original infringement lawsuit.

Yesterday I attended two Samsung v. Apple trials in Mannheim, Germany, and will report on those over the weekend or early next week. Decisions, which could be orders of procedural scope or substantive rulings, have been scheduled for January 25, 2013.

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About Me

Florian Mueller used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.